Treaty rights

Treaty rights are certain rights that were reserved by indigenous peoples when they signed treaties with settler societies in the wake of European colonization. This applies to the rights of Alaska Natives and Native Americans in the United States and First Nations in Canada, as well as to a smaller number of Inuit and Metis in Canada who have entered into treaties.

Treaty rights are not the only rights claimed by indigenous peoples. Indigenous people claim inherent rights to self-determination, which implies that they be recognized as rights-bearing groups (called "tribes", "bands", or "nations" depending on the place and time) capable of self-determination and cultural survival. Once the state recognizes that there is another body corporate with legal personality capable of making binding agreements on behalf of its members, then negotiations can begin for mutual exchange and aid: a treaty. The earliest of these agreements, between colonial powers such the French, British, and the Dutch and various indigenous peoples of the Atlantic coastal regions had the character of military alliances, as between peers. Later treaties, however, were generally about the cession of land from weakened Aboriginal peoples to expanding settler states. By the Royal Proclamation of 1763 the British Crown (i.e. the state) declared that individual British subjects could not buy land from native nations; only the Crown could obtain land from native nations through treaty, which it could then redistribute to individuals. This principle, which was adopted by both Canada and the United States upon gaining independence from Britain, became the legal impetus for all subsequent treaties in North America.

By signing treaties, indigenous peoples traded vast amounts of their land and resources in exchange for reserved areas of land (Indian reservations [US terminology] and Indian reserves [Canadian terminology]) and things like protection (from attacks on their lands), health care, education, and religious freedom, protection of hunting and fishing rights, and sometimes some monies as well. Because Article Six of the United States Constitution declares treaties to be the supreme law of the land, treaties are just as valid today as they were the day they were signed, and treaty rights are still legally binding as well. Likewise treaty rights were enshrined in Canada under section 35 by the package of constitutional reforms of 1982.

A common critique of the treaty relationship is that treaty rights are "special" rights given to by the state because of their racial status.

Defenders of the treaty system argue however, that the government does not "give" treaty rights to anyone – native people reserved them when they signed treaties in a government-to-government relationship.

Treaty rights are frequently subject to public debate, particularly hunting and fishing rights. Many Native nations have reserved rights to hunt and fish in their accustomed places, which are often land that was given up at the treaty signing, or "ceded land". This leads to conflict with sports and commercial hunters and fishers, who are competing for the same limited resource in the same place.

Another common source of conflict is management decisions about the land or rivers on which Native people have rights. Things like dams and logging have huge effects on fish and wildlife populations, but Native people are rarely consulted when it comes to the management process of these lands and rivers, even though many tribes still depend on hunting and fishing for subsistence.